Petty, Laurie ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-70,477-01

---

EX PARTE LAURIE PETTY, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20194-A IN THE 3^RD JUDICIAL DISTRICT COURT FROM ANDERSON COUNTY

---

   Per curiam. O R D E R  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated sexual assault of a child, and was sentenced by a jury to sixty years' imprisonment. The Twelfth Court of Appeals affirmed her conviction. Petty v. State, No. 12-90-00013-CR (Tex. App. - Tyler, March 31, 1992, no pet).

Applicant contends, inter alia, that her plea was not knowingly and voluntarily entered because trial counsel gave her no choice but to plead guilty. Applicant alleges that counsel advised her to go to the jury for punishment because the jury could give her probation. Although it is true that the trial court could not have given Applicant probation for the offense of aggravated sexual assault of a child, the record contains nothing else to indicate whether counsel's advice was reasonable, and whether, but for counsel's advice, Applicant would not have pleaded guilty but would have insisted on going to trial on the charges. The habeas record does not contain a copy of the appellate opinion, a response from the State, an affidavit from counsel, or findings of fact from the trial court.

Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim that he coerced Applicant into pleading guilty. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall first supplement the habeas record with a copy of the appellate opinion, and any other documents relevant to Applicant's claim. The trial court shall then make findings of fact as to whether counsel filed a pre-trial motion for probation in this cause. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.   

Filed: September 10, 2008

Do not publish